Sep 052018

I’ll begin with a disclosure: I tend to vote blue.  I don’t like my fellow Americans going hungry, or having to choose between being ill or being bankrupt (or both), or not having control over their bodies (especially if they’re women).  And unfortunately the Democrats have been the only game in town to reliably share these values.

At the same time, while I lean blue, I’m not deaf to red.  I can hear the merit to many things Republicans have to say, particularly to the extent that they counsel government restraint and fiscal responsibility.  Even when I don’t agree with their full conclusions, I can still respect the value of their input.  And I have no problem with advocating for more reddish policies when I think they would ultimately be more effective in actually achieving liberal values than those that are more bluish, as often is the case.

Which is why, even though I was disappointed in the choices of Gorsuch and Kavanaugh for the Supreme Court, I have not been panicked.  True, each of these judges have, at times, espoused ideas that gave me pause. And I worry that they lack enough empathy for others’ lived experience to understand how the law they define may or may not actually be just.  But at the same time, both are educated, intelligent, thoughtful jurists, before whom equally capable lawyers can advocate to bring about the judicial results that will best preserve liberty for all.

Which is also why I say the following: as a credible jurist, Judge Kavanaugh should withdraw his Supreme Court nomination.  The power of the president to award a life appointment in the nation’s highest court presumes that this power was derived from elections that were free and fair.  Yet today there is ample reason to doubt that the last presidential election met these criteria and that the exercise of this appointment power legitimate.

There are at least three sources for this concern: the disenfranchisement in states where substantially more citizens were prevented from voting than the Trump candidacy’s margin of victory; the efforts by members of the Trump campaign to coordinate with Russian operatives to illegally exfiltrate and then publicly release information from their opponent’s private servers; and the overt violations of campaign finance laws designed to preserve a perceived political advantage.

Each charge on its own calls into question the legitimacy of the current presidency, but the troubling aspect focused on here is the illegal activity done to obtain an electoral victory.  There is mounting evidence that such criminal activities were undertaken with regard to the Russians, and the public is now aware of testimony, given under oath, implicating Donald Trump in the commission of crimes relating to campaign finance laws.  Whether the commission of any of these crimes ultimately turned the election is immaterial – after all, if someone fires a gun and their intended victim is suddenly hit by a car, they are not off the hook for the shooting.  What matters is that crimes were committed in the pursuit of political power, and as such this behavior now impugns the exercise of the power attained.

We have, of course, had scoundrels in government before.  We’ve even had officials commit illegal acts in office before.  Yet the discovery of their general malfeasance hasn’t automatically discredited everything that resulted from the exercise of their official powers, and for good reason.  The constitutional order of the United States depends not on the respect for any particular official, but on the respect for the office he occupies.  It’s why we can count on civil service employees to continue to serve in their roles professionally, and the military to continue to obey orders from its Commander-in-Chief, no matter who is President.  They serve their country in this way not because they respect the President himself but because they respect the office endowed with the power to direct their service.  It’s also why our institutions have the resilience to withstand imperfect individuals occupying our elected offices.  The power we allow the government to have on our lives is the power we allow the offices and institutions within the government to have, not the power we allow any of their particular occupants.

Furthermore, there will always be complaints about our elected officials.  And unfortunately there may often even be reasons to worry that an electoral victory may not have been a truly pure representation of democratic will.  Serious though these concerns are, however, we cannot invalidate everything the government does because of the imperfections found in our enormous, fairly unwieldy, and very human democratic system.  Instead we’ve lived with these sorts of imperfections because we have always been able to believe that the basic tenets of our system of government, at least at their core, were still sound.

The situation we are faced with today, however, makes this confidence misplaced.  While the United States of America can withstand weak character and incompetence in its governing officials, what it cannot withstand is the criminal co-opting of its allocated governmental powers.  The authority of its governing institutions upon the governed depends on their operation being with the consent of the governed.  Yet as evidence of illegality by the Trump campaign continues to mount we are learning that this public consent, upon which the exercise of Trump’s presidential power is predicated, was in fact fraudulently obtained.

And that is an enormous problem, both generally and as applied to the Supreme Court nomination process specifically.  While we may lament its politicization, the Founders undoubtedly recognized that Supreme Court nominations would be, at least to some extent, political acts, or else they would not have had to so specifically apportion the appointment power.  Given the critical role of an Article III judge in the nation’s governance structure, along with the significant impact a life appointment would have on that governance, it was particularly important to design a system where nominees would reflect political consensus.  The judiciary could not be a co-equal branch of government, exercising an authority the people would also regard as legitimate, if the people could not regard its composition itself as a legitimate reflection of this consensus.

Yet today there is little reason to believe a presidential appointment by Trump represents any sort of valid reflection of political consensus.  Rather, it appears to be a nomination made by someone who unfairly, if not outright illegally, manipulated an election in order to obtain his powers – including, pointedly, the nomination power.  And it is a nomination being supported by a party keen to exploit the opportunity this wrongful act has provided them to push forward a political preference that without this advantage would otherwise have at least been difficult, if not impossible, to achieve by true political consensus.  In fact, the more Judge Kavanaugh’s backers try to ram through his appointment without the transparency necessary to build that critical consensus, the more it seems to telegraph that he is a suspect choice who could not withstand the public scrutiny of a legitimate nomination to garner it.

Thus, even for simply for his own reputational reasons, Judge Kavanaugh should withdraw his nomination, because no matter how reasonable and correct his jurisprudence as a Supreme Court justice might be, it will always be doubted.  While the doubts may be unfair, whatever principled reasons there may be to support his nomination become irrelevant when the appointment’s process itself becomes so suspect.  By letting himself be used as a political pawn he undermines the confidence the American people need to have in his judicial output.  And that skepticism will hurt not just him.  The power of the judiciary to inform civic life depends on the public’s respect for it as an institution, just as any of our other governmental institutions do.  But as long as it seems like judicial power is being doled out in such a craven, cynical way, instead of in the aboveboard, accountable way the Constitution requires, it becomes impossible to sustain respect for the institution, or for its jurists.  The reality is, the more Kavanaugh may be the right choice for the moment, the more important it is that his nomination be completely above board.  The public will never be able to regard him as correct in his jurisprudential authority if that authority was derived illegitimately.

His willingness to suborn this suspect process also suggests that the doubts about his judicial temperament may not be misplaced if he cannot recognize the threat to the sustainability of our democracy that the political opportunism of his nomination represents.  Surely some of the concerns raised about his judicial attitudes are overwrought.  But in going along with the nomination, he sends the clear message that he believes it constitutionally proper for a president, who has now been implicated in criminal activity undertaken to secure electoral victory and with it the power to nominate Supreme Court justices, to continue to use that power.

Which is an odd position for any jurist to take, to be so indifferent to criminality.  It is especially odd for one in the highest court of the land, whose job it would be to articulate the parameters of our rule of law, because it suggests that the rule of law is irrelevant.  Only raw political power matters, regardless of whether that power was derived lawfully.  For a political system that depends on acquiescence by the governed to the government, such an attitude challenges the stability of our democracy.  What protects us from descending into violent political strife is the confidence we have in our institutions, thanks to the notions of fair play we believe is built into them.  Allowing his nomination to continue – a nomination from someone whom we have every reason to believe broke the law in order to obtain that nominating power – undermines that belief.  It validates the political chicanery behind the nomination and is an affirmative statement that illegal behavior in the pursuit of political power is just fine.

Worse, by allowing the miscreant to keep his prize it will inevitably invite future bad behavior by politicians who may find it much more expedient to manipulate the electoral system than to build the consensus necessary to push forward their political preferences.  After all, why shouldn’t future presidential candidates cheat to obtain power – and their political allies enable it – when there is such a reward for it to be had?

Of course, the wheels of justice grind slowly, and we cannot easily bring the entire United States to a halt while we sort out the full extent of the criminal allegations that have been plausibly dropped on Trump administration’s doorstep.  The administration of our democracy requires that someone perform the role of Chief Executive and exercise the powers that come with that position.  For better or worse, that someone is Trump.  But we can limit the impact of his exercise of executive power, and should.  While it may be impractical or even imprudent to ever try to unring the bell and undo everything that an illegitimately empowered official has done while in office, it is even more imprudent to keep ringing it when we have reason to suspect its notes are so sour.  And if Kavanaugh is truly qualified to join our pantheon of great legal thinkers, then he, and any other nominee, should recognize that.

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